Overview
In This Section |
This section contains the following topics:
|
1. Compensation for Paired Organs or Extremities
Introduction |
This topic contains information on compensation for certain paired organs or extremities, including
|
Change Date |
May 13, 2015
|
IV.ii.2.K.1.a. Basis for Awarding Compensation for Certain Paired Organs or Extremities Under 38 U.S.C. 1160 |
Compensation is payable under 38 U.S.C. 1160 for disabilities involving certain paired organs or extremities, one service-connected (SC) and the other non-service-connected (NSC), provided the NSC disability is not the result of the Veteran’s own willful misconduct.
References: For more information on
|
IV.ii.2.K.1.b. Criteria for Establishing Entitlement |
Consider compensation under 38 U.S.C. 1160 for the following:
Note: Compensation may be paid under 38 U.S.C. 1160 if compensation is being paid for one of the aforementioned conditions under 38 U.S.C. 1151 and there is manifestation of the specific NSC disability under 38 U.S.C. 1160.
|
IV.ii.2.K.1.c. Effective Dates for Provisions of the Law |
Use the table below to determine effective dates for the provisions of law that created the criteria establishing entitlement to compensation under 38 U.S.C. 1160.
Reference: For more information on the history of SMC for certain paired organs, see M21-1, Part IV, Subpart ii, 2.I.
|
IV.ii.2.K.1.d. Eligibility for Other Benefits Based on Paired Organs or Extremities |
Entitlement to disability compensation for a Veteran based on paired organs or extremities under 38 U.S.C. 1160 creates eligibility for the following benefits
Note: Compensation entitlement under 38 U.S.C. 1160 does not create entitlement to
References: For more information on
|
2. Disability or Death From Use of Alcohol
Introduction |
This topic contains information on disability or death from use of alcohol, including
|
Change Date |
May 23, 2018
|
IV.ii.2.K.2.a. Willful Misconduct |
The simple drinking of an alcoholic beverage in and of itself is not willful misconduct. If deliberate intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of willful misconduct.
Reference: For more information on willful misconduct, see
|
IV.ii.2.K.2.c. Definition: Alcohol Abuse |
Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death to the user.
Reference: For more information on the definition of alcohol abuse, see 38 CFR 3.301(d).
|
IV.ii.2.K.2.d. Alcoholism Secondary to an SC Disability |
Where there is sufficient medical evidence establishing that an alcohol abuse disability is secondary to or a symptom of an SC disability, and where the alcohol abuse disability is not due to willful misconduct, then a Veteran may establish service connection (SC) for the alcohol abuse disability on a secondary basis. Establish SC under 38 CFR 3.310(a) for any diseases or disabilities resulting from alcohol abuse, if alcohol abuse is determined to be secondary to an SC disability.
Example: A Veteran is SC for a chronic back disability He claims SC for alcohol abuse as secondary to the back disability. The VA examination diagnoses alcohol abuse as secondary to the back disability, noting that the Veteran experiences chronic, intractable back pain and has utilized alcohol for treatment of the pain to the point that he is now alcohol-dependent. Award SC for alcohol abuse secondary to the SC back disability.
Reference: For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).
|
IV.ii.2.K.2.f. Claims Filed Before August 13, 1964, Involving the Secondary Effects of Alcohol |
The secondary effects of alcohol were considered of willful misconduct origin before August 13, 1964.
Do not award benefits under 38 CFR 3.114(a) prior to August 13, 1964, for the secondary effects of alcohol.
|
IV.ii.2.K.2.h. Claims Filed After October 31, 1990, Involving the Secondary Effects of Alcohol |
The awarding of SC for secondary disabilities or death resulting from alcohol or drug abuse is prohibited effective November 1, 1990, under the provisions of Public Law (PL) 101-508.
Do not consider disabilities or death that result from the abuse of alcohol during active service to have been incurred in the line of duty. However, under Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), where there is sufficient medical evidence establishing that the alcohol or drug abuse disability is secondary to, or is a symptom of SC disability, and where the alcohol or drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the alcohol or drug abuse disability on a secondary basis.
The Federal Circuit, in Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), held that38 U.S.C. 1110, precludes payment of compensation in only two situations
The Federal Circuit defined “primary” as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. In addition, substance abuse may be a symptom of worsening of an SC condition resulting in a higher rating for that condition.
Important: Do not
Note: Cost-of-living increases, for which no claim is required, may be paid.
Reference: For more information on line of duty and alcohol abuse, see
|
IV.ii.2.K.2.j. Resolving Reasonable Doubt |
Disabilities generally attributable to alcohol abuse may be due to other causes.
Do not deny a claim for SC for a disability on the basis of being related to alcohol abuse unless a preponderance of the evidence shows that the disability is primarily due to alcohol abuse.
Resolve reasonable doubt in favor of the claimant.
Notes:
Reference: For more information on application of the reasonable-doubt rule in compensation cases, see
|
3. Disability or Death From Use of Drugs
Introduction |
This topic contains information on disability or death from use of drugs, including
|
Change Date |
May 23, 2018
|
IV.ii.2.K.3.a. Willful Misconduct |
Consider disability or death the result of willful misconduct when the evidence shows
The progressive and frequent use of drugs, other than for a recognized therapeutic purpose, which results in addiction, is considered willful misconduct.
Note: The following will not be considered willful misconduct
Reference: For more information on willful misconduct due to drug usage, see 38 CFR 3.301(c)(3).
|
IV.ii.2.K.3.b. Definition: Drug Abuse |
Drug abuse is defined by VA as
Reference: For more information on drug abuse, see 38 CFR 3.301(d).
|
IV.ii.2.K.3.d. Claims for SC for Secondary Effects of Drug Usage Filed After October 31, 1990 |
The grant of SC for secondary disabilities or death that results from the abuse of drugs is prohibited effective November 1, 1990, under the provisions of PL 101-508.
Do not consider disabilities or death resulting from the abuse of drugs during active service to have been incurred in the line of duty.
Important: Do not
Note: Cost-of-living increases, for which no claim is required, may be paid.
Reference: For more information on line of duty and drug abuse, see
|
IV.ii.2.K.3.e. Drug Abuse Secondary to an SC Disability |
Where there is sufficient medical evidence establishing that a drug abuse disability is secondary to or a symptom of an SC disability, and where the drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the drug abuse disability on a secondary basis. Establish SC under 38 CFR 3.310(a)for any diseases or disabilities resulting from drug abuse, if drug abuse is determined to be secondary to an SC disability.
Example: A Veteran is SC for posttraumatic stress disorder (PTSD). He claims SC for drug abuse as secondary to the PTSD. The VA examination diagnoses drug abuse as secondary to the PTSD, noting that the Veteran relies on marijuana for treatment of his PTSD symptoms. Award SC for drug abuse secondary to SC PTSD.
Reference: For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).
|
4. Disability or Death From Use of Tobacco Products
Introduction |
This topic contains information on disability or death from use of tobacco products, including
|
Change Date |
September 15, 2011
|
IV.ii.2.K.4.a. Prohibition Against Direct SC |
Effective June 9, 1998, the awarding of SC for a disability or death that results from the Veteran’s use of tobacco products in service is prohibited.
Reference: For more information, see 38 CFR 3.300(a).
|
IV.ii.2.K.4.b. Disability Secondary to a Tobacco-Related SC Disability |
Under 38 CFR 3.300(c), the establishment of SC for a disability that develops as a result of a tobacco-related disability, for which SC was previously awarded based on the Veteran’s use of tobacco products during service, is prohibited, if such a claim for SC is received on or after June 9, 1998.
|
IV.ii.2.K.4.c. An Example of a Claim for a Disability Secondary to a Tobacco-Related SC Disability |
Facts: SC for nicotine dependence resulting from tobacco use that began during service was established in 1997. In April 2003, the Veteran claimed that his chronic obstructive pulmonary disease was secondary to SC nicotine dependence.
Result: Deny SC for chronic obstructive pulmonary disease.
Rationale: Although SC was previously established for nicotine dependence, under 38 CFR 3.300(c) the establishment of SC for a disability that is secondary to a tobacco-related SC disability is prohibited, because the claim was filed after June 9, 1998.
|
IV.ii.2.K.4.d. Secondary SC for Disability or Death Related to Tobacco Use After Service |
In VAOPGCPREC 6-2003, General Counsel held that secondary SC may be established for disability or death related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.
|
IV.ii.2.K.4.f. An Example of a Claim for Secondary SC for a Disability Related to Tobacco Use After Service |
Facts: A Veteran with an SC evaluation for PTSD claims secondary SC for tobacco-related emphysema. He states that he started smoking cigarettes after service because of anxiety related to PTSD.
Result: Award SC for emphysema on a secondary basis if it is shown that
Rationale: Per VAOPGCPREC 6-2003, secondary SC may be awarded for disability related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.
|
5. Diving-Related Disabilities
Introduction |
This topic contains information on disabilities that may be related to diving, including
|
Change Date |
May 13, 2015
|
IV.ii.2.K.5.a. Diving Techniques and Associated Risks |
Diving techniques include the following:
Saturation diving is essentially defined as a diver having been at a depth long enough (typically 24 hours or longer) for tissues to have absorbed the maximum amount of gas possible for that particular depth, so that gas equilibrium has been achieved. Saturation divers live for long periods of time in a chamber pressured to the desired depth, and work in an extremely harsh, physically demanding environment.
Bounce diving commonly refers to any non-saturation dive. Typically, multiple bounce dives of different depths and duration are conducted in a single day with repeated decompressions.
Under certain circumstances, any type of diving may result in
Note: Long-term effects resulting in chronic disabilities are more likely to result from saturation, rather than non-saturation, diving.
|
IV.ii.2.K.5.b. DCS and AGE |
In DCS, nearly all symptoms are present within 24 hours after the dive while some may occur within 3 hours. While many signs and symptoms resolve rapidly if treated within minutes of onset, permanent injury or disability may result even with treatment. Arterial gas emboli (AGE) are inert gas bubbles that form in the venous blood during decompression and can lodge in coronary, cerebral, or other arteries in the body with potentially catastrophic results.
DCS is divided into two types, depending on the symptoms involved, and some divers experience both types. The table below describes some, but not all, of the symptoms and potential chronic effects of DCS and AGE.
|
IV.ii.2.K.5.c. Toxic Effects of Gases in Diving |
The table below describes the conditions and associated symptoms that may be due to the toxic effects of gases when diving. Chronic disabilities may result from these responses to diving.
|
IV.ii.2.K.5.d. Potential Long-Term Effects of Diving |
Many other long-term effects may result from diving, with or without incurrence of DCS. The table below lists some, but not all, of the disabilities that may be associated with a history of diving.
|
IV.ii.2.K.5.e. Rating Residuals of Diving Injuries |
In rating residuals of a diving injury, 38 CFR 4.71a, diagnostic code (DC) 5011, Caisson disease of, is often used as it is the only DC specific to diving residuals. 38 CFR 4.71a, DC 5011, directs that Caisson disease should be rated as arthritis, cord involvement, or deafness. However, numerous other disabilities outside of those explicitly identified under 38 CFR 4.71a, DC 5011, may result from a diving injury and may be SC on the basis of a residual of a diving injury. In service connecting any disability due to diving, use DC 5011 hyphenated with the appropriate code used for the disability evaluation. For example, eczema due to a diving injury would be rated as DC 5011-7806.
Important:
|
IV.ii.2.K.5.f. Examinations and Medical Opinions |
An examination with medical opinion is needed for a claim for SC for residuals of diving if there is not sufficient competent medical evidence to decide the claim, but the record contains
Submit complex or unusual questions related to a claim for disability compensation on the basis of diving or a diving-related injury to the Director, Compensation Service (211B) for an advisory opinion.
References: For more information on
|
5-23-18_Key-Changes_M21-1IV_ii_2_SecK.docx | May 21, 2019 | 70 KB |
Historical_M21-1IV_ii_2_SecK_2-22-17.doc | May 21, 2019 | 210 KB |
9-22-17_Key-Changes_M21-1IV_ii_2_SecK.docx | May 21, 2019 | 80 KB |
Historical_M21-1IV_ii_2_SecK_5-13-15.doc | May 21, 2019 | 202 KB |
Change-May-13-2015-Transmittal-Sheet-M21-1MR_IV_ii_2_SecK_TS.docx | May 21, 2019 | 44 KB |
Change-May-13-2015-Transmittal-Sheet-M21-1IV_ii_2_SecE_TS.docx | May 21, 2019 | 43 KB |
Change-May-13-2015-Transmittal-Sheet-M21-1VI_1_TS.docx | May 18, 2019 | 37 KB |
Change-May-13-2015-Transmittal-Sheet-M21-1III_vi_4_SecE_TS.docx | May 18, 2019 | 39 KB |
Transmittal-Sheet-09_08_09.docx | May 21, 2019 | 32 KB |
in Chapter 2 Rating, Part IV Compensation, DIC, and Death Compensation Benefits, Subpart ii Compensation
Related Articles